that 9/11 resulted in the executive branch obtaining unprecedented and unaccountable power, the reality is that congress pushed back against executive power in the significant ways after september 2001 and placed controls on the president that most people don't realize exist be. this, he says, explains why president obama has not made a major shift away from the counterterrorism policies of the bush administration. [applause] >> thank you very much, rachel, and i want to thank the harvard bookstore for hosting this event and organizing it, and i also want to thank my distinguished colleagues for taking time out of their busy schedule to come and talk about my book. i'm going to give a very brief overview of the book, and then i'm anxious to hear what the distinguished panel has to say about it. so the book begins from the observation that the most surprising, perhaps the most
surprising development in the obama administration is the fact that it continued george w. bush's counterterrorism policies, almost all of them. there were a few changes, one major change, but for the most part they continued the path that george bush was on at the end of his term. and, um, this was surprising because president obama, one of his central campaign promises was he was going to change things, and everyone thought there was going to be a dramatic change in the course of counterterrorism policies. and the main explanation, i think it's fair to say, for why obama continued bush's policies is some combination of that he lacked the courage of his convictions and wasn't as strong-ed or as committed to civil liberties as his supporters hoped, and that relatedly the presidency is just a gigantic institution that's out of control, and whoever gets in that office is going to exercise all of these massive powers. now, there's no doubt that along many dimensions this is hard to
measure, but the presidency is more powerful, certainly larger, has more tools at its disposal than ever before. we're engaged in an indefinite war against al-qaeda and its affiliates, and in some sense of transfer of military power to this president which we have done on an indefinite basis does empower the president as he's never been empowered before. the thesis of my book is that that's only half the story, and the other half that we should pay more attention to is how constrained the presidency is and that, in fact, the other institutions of our government have done a remarkable job of observing, rooting out secrets of the presidency, scrutinizing what the presidency's doing, pushing back against the presidency and then legitimating its policies. and i describe this at length in the book. the way this links up to obama continuing bush's policies is there are many reasons why obama continued bush's policies, some
of them are obvious. when he became president, he had different kinds of responsibilities, he had different access to different types of information. and there were many precedents that were available to him, executive branch precedents that he didn't want to walk away from. but i think the most important explanation for why he continued bush's policies is that right under our nose those policies had been vetted by the other institutions of our government, altered and then blessed. this is true of military commissions, military detentions and surveillance primarily, but lots of other issues that i talk about in the book. um, now, this is a story about really extraordinary and unprecedented action by the traditional institutions that check the presidency. so congress, the most hapless institution of the government in my opinion for many reasons, actually engage in unprecedented regulation of the commander in chief during war on military commissions, on surveillance, even on military detention and on interrogation where not really, it's not really known
how far, how congress in 2005 basically stopped the bush administration's terrorism -- interrogation policies in its tracks. so congress is consequential, courts were even more consequential. courts, arthur schlessinger said courts have never been involved in checking the presidency during wartime. that has not been true in this war and courts have, in fact, given the president many defeats and have, basically, vindicated the rights of enemy soldiers like never before in war and caused the president to alter many of his policies. the press, the other institution that the founders thought would check the presidency as i describe in detail in the book, has done an extraordinary job of rooting out government secrets and exposing errors and abuse of the government. so that's u more or less, a story that's not as well known. but the book is also about revealing a more complicated system with more complicated
actors. and i'll just mention two others that were very con again number achieving the legitimation of this system as i call it in the book. one were actors inside the executive branch, lawyers, tons of lawyers, but also ethics monitors and these entities called inspectors general that are really independent watchdogs inside of the presidency that did an extraordinary job of collecting information and reporting that information to the public and congress in a way that led to some of the changes. and finally, um, human rights organizations. american and global human rights os that were networked -- organizations that were networked in very powerful ways with people inside the government, inside the military, inside congress, with the press, with actors around the globe. they brought enormous pressure to bear on the government in ways that there really hasn't been a force like this in any prior war in this bringing lawsuits, critical reports, freedom of information act claims and the like. the book is about describing all of these processes and how they worked to push back against the bush presidency and, also, to
push back against the obama presidency. the reason that gitmo is open today is not because president obama wanted that, but because congress in a set of unprecedented acts, basically, prevented him from closing gitmo. another sort of -- that's a very powerful check on the presidency. whatever you think of it. most of the book is a rich description of how this works with some characters from that are a little bit beau the radar screen -- below the radar screen and trying to describe how this process works. i'll close with this. my normative take on the book is a little complicated. sorry, on these issues is a little complicated. they basically say that this, what i describe as vindicated the basic system of checks and balances that the framers established. um, vibd candidated -- vindicated they're not in the way they would have wanted. but as arthur schlessinger said, the main criterium is
self-correction. and we've had a series of self-corrections from a very disruptive event in 2001 to where we're in a position in 2012 where there's a remarkable legal and political consensus in this country in favor of what president obama's doing. that is a carryover of the process under president bush. whether we have the precise, the perfect counterterrorism policies for reasons i discuss in the book, that's very hard to know. we don't have enough information about the threat, our values different about how we want to weigh the trade-off between security and liberty. i do say also, though, but the point i want to end with is these many constraints on the presidency that i describe in the book, the name of the book is "power and be constraint," and one of the important strains is we worry many people -- including myself -- worry as much about the excessive pours of the -- powers of the presidency as we do about the terrorist threat. that these many, many constraints have been important in guiding the presidency away from some of its excesses and in
generating consent. also importantly, it strengthened the presidency along many dimensions and enabled him, the president, both bush and obama, to do things they otherwise would not have been able to do. the reason that gitmo is off the radar screen legally and politically today is because the courts intervened, raised the legal standards, reviewed the detentions there, forced some people to be released indirectly, but they blessed it. the courts and the congress and now have supported the president on what's going on there. the reason that president obama when he was a senator went along with revision of the surveillance program, they gave the president large powers of warrantless surveillance, was because as senator obama said, there's this watchdog that i talked about, the inspector general, who's inside the executive branch watching him, and i trust that independent actor to keep the executive branch in line as part of this process. military commissions are finally getting going because they've now been basically blessed by all the branches of the government. so the presidency is this very
large and powerful institution, but it is deeply checked and accountable constitution, and that accountability scheme is a very important element of its power. that's, basically, what the book is about, and i think martha's going to speak next. i'm sorry, charles. >> in many leviticus -- leviticus, jehovah prohibited -- stated, thou shalt not see the kid in it mother's milk. thereby indicating a emblematic act of cruelty and inhumanity. based on that one phrase, the rabbinical lawyers have created something as complicated as what jack describes so that now observant jews will have two sets of dishes, and all dishes
will be glass lest a molecule of meat or a molecule of milk remain after washing. abraham lincoln in 1863 promulgated the most remarkable document which is still worth all of your attention, the leiber code, executive order 101, which is a code for the conduct of war. the first ever. and it's very hard-headed, but it precludes as did leviticus basic acts of cruelty and inhumanity. we now have a army of lawyers everywhere from julius caesar to
napoleon to mom el to -- to rommel to patton. everyone has understood to wage a war you must have surprise, flexibility, intuition. the phenomenon which jack so strikingly and originally describes and appears to celebrate, i deplore. but we see the same thing. it has made surprise flexibility intuition in the conduct of war virtually impossible. now, i think it was st. francis xavier who said one should never attribute to a man a motive more exalted than is necessary to explain his behavior. so how did we get this?
and i look at institutions like the center for constitutional rights and it's emblematic leader, david cole, and i ask, well, what is the motive? no more exalted than is necessary to explain his behavior, and that is that he hates war, he hates the use of force, and he isn't particularly fond of the government of the united states. and i think those things are all at work here. and, therefore, what do i recommend? what would i like to happen? what i would like to happen is that we could return to a simpler time when a simple code enacted by a great and decent man, abraham lincoln, would be enough. is it enough? i'm afraid not. but what we're left with is a
absolute monstrosity which is so powerfully described in this book. >> thank you, charles. [laughter] >> charles, i wish you would say what you really think. [laughter] >> next time. >> so this is a tremendous book. it is a pleasure to read. every page has insights in it. i'm just going to highlight a couple of themes that are related to but maybe beyond, actually, what jack already summarized and ask a couple of questions. so the subtitle of the book, "the accountable presidency after 9/11," i think, is the most interesting avenue into the book. the book into douses -- into deuces the -- introduces the idea of accountability with new techniques beyond what the constitution actually provided for and at the same time demonstrating how the existing branches actually, also, have been able to interrelate and
provide checks and balances. the new accountability techniques include some of the techniques used within the existing branches such as the inspector genre scream created by congress inside the executive, such as the freedom of information act created by congress but then available for people like david cole and other private actors to produce a kind of transparency. and what the book demonstrates is that both in the process and in the results this combination of new activities in old branches and new kinds of uses of instruments has actually produced enormous transformation of the substantive policies and of the dynamic among the branches. a question that i have is whether, in fact, the declining resources that are existing, for
example, for investigative journalism bode ill for the dynamic that the book so well describes. so, for example, media is a critical player in this story. and the effective investigative journalism that disclosed everything from the absolutely horrific behavior in abu ghraib to the existence of secret surveillance depended on a kind of financing of investigative journalism that i'm not sure will exist going forward. the disruptive activities from the digital and can other kinds of -- and other kinds of developments on the field of journalism are quite profound. jack anticipated the questions to some extent in saying, well, but there still is a market for international news. i ask, is that true? particularly when we're dealing with global wars, you cannot imagine how expense bive it is to cover these kinds of
developments all over the world. a second element that the book so well describes is the role of these nonprofit organizations, the human rights organizations, the aclu, for example. they be able to operate in the same way that they have in the past is a similar question that i have to ask. in particular, will they be able to find the kind of independence and funding sources, um, that they have had in the past? and a third aspect of the accountability regime that the book so well describes is the role of lawyers and the role of lawyers really inside the military as well as inside each of these branches and lawyers who are actually setting constraints on the behavior of the military, behavior of the executive. but the book itself also argues that law can provide a basis or a substitute for military
action. and i'm wondering as law becomes a tool in war, will it still provide the same kinds of checks that the book so well describes? finally, the book makes the very interesting argument that the leaks have, actually, matched the degree of secrecy. and it similarly makes the very interesting argument that people on all sides of the debates over the terror presidency feel that they lost. people inside the executive, people inside the military, people in the nonprofit rights organizations, people in the media. and my question about both of those insights that there seems to be a kind of parallel, the leaking has matched the secrecy, and the sense of, um, us frustration by people on all sides, i wonder if that actually suggests, um, something a little bit too neat. that maybe there's a tragedy here rather than a solution.
maybe there's simply frustration on all sides. now, jack closed by saying that you don't know -- and i'm sure money of us do -- noun us do -- whether or not the united states has reached the right equilibrium. i guess i would push the question a little bit differently. have we reached the right accountability mechanisms? will they be self-perpetuating, or will the next cycle actually require the development of new institutions? >> joe? >> well, this is a very interesting and subtle book. if jack had merely stopped at the first part that he described tonight or, basically, the first chapter of the book saying, you know, obama got stuck with the same system we got stuck with, and the bush administration, you know, interesting, but that's not what the book is. the book is, actually, a profound economy gee sis of
madisonian democracy. and updating it for the digital age. and that is very original. i mean, the book is worth reading for that alone. and it's interesting, i published this book a year ago which made the argument that the united states was not in decline, and i spent a lot of time defending the economic and social bases of that argument, and then people would always pull out the trump card. their trump card is, ah, but political, the political system is broken. just look around you and look how miserable it is. it's broken. and as a madisonian, i would say, no, it's not. you've got to realize the american political system was designed to prevent king george from ruling over us or anybody else as well. they were concerned, the founding fathers were concerned about freedom. not about effectiveness. and they did, indeed, create a
system which was frustrating, has a lot of mess but which did preserve freedom. now, if you take the world after 9/11, there was a great deal of worry that that system was broken. didn't fit the 21st century. you couldn't take madison and separation of powers and make it a 21st century. but, in fact, what jack shows is you can, and we have. so rather than saying the political system is broken, if you read this book, you'll say, my god, it works. you know, madison said you check class with class, interest with interest, faction with faction. and what we see is that that is what we did in the period after 9/11. my initial reservations about the bush administration and its reactions was it seemed to be proo foundly wrong that one person, the president, could be execution, jury, judge, you
know, the whole works. that was, that concentration of power of what you might call the cheney/addington theory of the constitution i found profoundly offensive from a madisonian point of view. and it doesn't work. and ask yourself this question. if somebody asked you whether in the period after 9/11 with the most, if you want, at least on paper or rhetorically rigorous defense of presidential power that we've seen in the executive in decades, namely bush/cheney/addington, so forth, would you expect supreme court to overrule the long tradition that courts stay out of habeas corpus issues in the midst of wartime? or that courts would allow wireless surveillance. or courts in congress. or that they would ratify
military commissions. you'd say, look, who's going to prevail on this? a bunch of human rights lawyers or this really tough set of people in the executive branch? and guess what? a bunch of human rights lawyers overcomes this really tough set of people. that's a huge anomaly for political scientists to explain. and then you read this book, you'll see it. it's explained. because not only do you have the questions of the three branches of government and the fourth branch of the press, but there's a fifth branch which you might call if you're a social scientist, you'd call them systemic communities, but in more common sense terminology you'll call them like-minded networks. and they can be bloggers, they can be lawyers, they can be human rights activists, red cross officials and so forth. and what they have is soft power. and what's interesting is that as stalin once said about the
pope, how many divisions does the pope have? and that was a putdown of this pope's alleged soft power. but what you find when you read jack's book is today every division has judge advocate generals, every division has a lawyer. so it's not how many divisions you have, it's how many lawyers does your division have. and then how do they network with each other and create a new consensus? and there's some brilliant pages in here describing exactly how this happens. so i found when i read this book, i came to the conclusion quite different than charles did. rather than seeing it as an abomination -- after all, we still did have a fair amount of surprise with the slaying of bin laden -- but rather than seeing it as an abomination, i saw it as a justification of james madison. that we have evolved a system and a political culture that's strong enough that we can
preserve those fundamental insights that madison had. in that sense, this is a very conservative book with a very small c. but it is a book which to my mind reinstores my faith in the founding fathers and the american tradition. so jack ends the book with a nice little quote in which he says that if madison were to come down from heaven and to look to see what's going on, it might put a smile on his face. and i'd say that if he couldn't get here but somebody sent him a copy of jack's book up in heaven, that would also put a smile on his face. [laughter] so well done. >> so thank you so much for those comments. i'll just try to respond to some of them. just on joe's point, um, i agree with your assessment of the kind of short-term thinking and how self-defeating the bush unilateral strategy was. amazingly, um, so i read and did a short comment on the cheney
and bush and rumsfeld memoirs, and, um, vice president cheney was unapologetic about this unilateral approach and the need to expand the presidency. but amazingly, in my opinion, donald rumsfeld had a whole chapter called the road not taken in which he said the biggest mistake we made was -- he didn't put it this way, but the unilateral approach, we didn't work more with the congress. that led the courts to get suspicious and to get involved, and it ended up putting us in a tighter bond and delegitimating what we were doing much more so than if we had gotten them onboard in the beginning, and president bush in a briefer statement said the same thing in his memoir. those are remarkable, i think, lessons of that approach. so i disagree with charles about, um, not with his description. it is the process and the institutions i describe are very she messy ones, there are a lot of lawyers involved, but not just lawyers.
there are a lot of extreme claims and name calling and lots of lawsuits and tons of lawyers and other people asking for documents and looking at things and seeking approval. but i think it's wrong as joe said to say that surprise and flexibility become impossible. the bin laden raid demonstrates that. our military is extremely effective, and there are very few commanders you can talk to, including david petraeus when he was in the military whom i interviewed for the book, who wouldn't say that the military is better off for all the lawyers they have. there are costs, and i talk about them in the book, but the judgment of the military, including david petraeus s on balance the lawyers help constrain us, help us to do, act prudently, and prudent action especially in a world that is entirely networked in which the military's actions are visible to the whole world, that kind of constraint turned out to be very important to power. the largest defeat the united states had after 9/11 was abu ghraib, and some of the other
legal mistakes that were made were also harmful to the effort. and so the judgment of the military is that while lawyers are not without serious costs that are on balance effective and important, as for, you know, the ngos and what motivates the center for constitutional rights, one of the, perhaps, surprising things in this book coming from me is how i celebrate the role of human rights institutions and national -- nongovernmental organizations and the role that they have played in making the presidency accountable and legitimating it. the center for constitutional rights, whatever you think about what it was motivated by -- and i don't think motivations count as much as what they accomplish -- they won several very important supreme court victories. and those supreme court victories led to a spate of judicial review that led to the blessing of the gitmo policy, basically. without those lawsuits, and this is one of the great ironies for the human rights organizations, without those lawsuits and the processes that they triggered,
um, the, you know, it's a remarkable fact that we have 170 people being detained at gitmo with the blessing of courts and congress and that are widely accepted by the american people. it is a legitimate system within our constitutional system, and the center for constitutional rights helped bring that system within the rule of law. so martha asked some tough questions, and i'm only going to be able to answer a few of them. it is an important question whether -- the first chapter of of the middle section of the book is called "accountability journalism." and i put what journalists did, and i use the phrase journalist in a broad way. what they did at the heart of the accountability system after 9/11. there was a lot of discussion, obviously, about the failures in iraq, but with that large exception, journalists did a remarkable job of uncovering what's going on in the war on terrorism. martha's right that investigative journalism budgets are declining. it's not obvious that they're declining among the major
publications that are the sources for almost all of national security reporting anyway in national security. i tried to get those numbers. the people that i talked to, including editors of some major newspapers, said those resources weren't declining. they're not obviously declining. but more importantly, as i discuss in the book, journalists are empowered by new technologies. there's this sense that the government because of new surveillance technologies, new digital technologies knows a lot more about what we, the people, are doing and the government does. but we haven't decided how those same technologies make journalists more powerful many hooking up with people inside the government, with people across the globe, with ordinary citizens who can watch and report on what they see on blogs the way that the secret prisons story was able to be broken was because people started seeing these planes by the cia being flown, they started posting it on web sites. journalists started watching, and that's what led the whole thing to break. so journalists are empowered. whether they're more powerful or
less powerful, i don't know. i don't know if match of secrecy and leaks, i don't know if there really is a match. but we have, i think it's important to focus on the other side of the equation. so i'll just answer one more question of martha's, and that is, do we have the right accountability mechanisms? the basic structure of the accountability mechanisms, the new ones, is that congress doesn't live up to its responsibilities directly, but it farms them out to other institutions who do this and do this in a pretty effective way. so congress, basically, created this inspector general that is this very con again expcial legitimate independent actor inside each branch agency. it's given more and more of a role for courts in scrutinizing the presidency. the freedom of information act regime was another way that congress delegates out -- it should be scrutinizing the president, for a lot of reasons, it doesn't do a good enough job. that path is going to continue
indefinitely. i was just reading how the gao, it's gotten into the business of now scrutinizing the intelligence agencies. it's been geffen access to classified programs. that's another set of eyeballs on inside the presidency. i think those are just going to continue. what we've seen is that the presidency has grown and grown. the reason that charles' world of simple world is no longer possible is because the presidency is guy gantic -- gigantic. it is unfathom my large and complicated. the department of defense spends a couple of billion dollars every day. it's a huge organization, and it's all over the globe. you can't have complicated organizations hike that without lots of systems in place for what's right, what's wrong, when things happen and why. and so that's -- and without a lot of watching and accountability as well. so i think as the presidency grows and it seems to be a condition of modern times that it will grow, i think we'll see growth of these delegations to actors outside of congress,
especially into the private sector and inside the executive branch. >> one of the most interesting things you develop here is a notion of checks and balances which is beyond what, i think, the constitution imagines. so here's one that you talk about, and i'd be interested in your views and everyone else's views. about how it works and how well it works. and that is with the leaking inside the executive branch as a kind of tool that sometimes quite deliberately is advancing the executive branch's policy, sometimes it's people of conscious inside the executive branch with the leaking, you point out that there is one way in which the executive branch can handle that, and that is to be more transparent. and so that the check and balance may actually not just be move/countermove, but move/move/countermove/countermov e. so if there's some reason to
believe, having interviewed so many people inside the executive branch, that that might be possible. and i wonder if joe has a view about that, charles has a view? >> if i understand your question correctly, i'm skeptical. the problem with secrecy in the government is that the executive branch determines what's secret. and it has an incentive to overclassify information. and it classifies way too much. that is a true statement and no one even inside the executive branch would deny there's excessive classification. justice stewart famously said when everything is secret, nothing is secret. and the reason that the government is so porous, the secrecy system is so porous, and every day on the front page of the paper there's classified information. it's a rare day when "the new york times" doesn't report on something in the front section that's not classified. one reason there is so much leaking is there is excessive secrecy. i don't think president obama came in committed to making the secrecy system more transparent. he's made very tiny progress.
it is a very hard problem, and i don't expect that the government will discipline itself more than it has. so i expect -- but i do also expect despite it excessive classification, i think it is along different dimensions becoming more transparent both because things leak, also because it's hard to keep things secret. it's very easy, and i talk about this. it's possible for journalists and others to figure things out about what the government's doing that's very secret from public indications. um, so i don't expect -- and, also, the last thing i'll say is we're also about to see all of the government's secrets aren't computer network, and we've seen organizations, cybersecurity has focused thus far on stealing secrets by criminals and governments and keeping the secrets secret and using the secrets to our advantage. but there are going to be organizations like anonymous and others that start stealing secrets from the government and in a manner akin to wikileaks, it's going to be pulling them out rather than having them
pushed out and exposing them. so i don't think, expect that the government will clean up its act in that regard. >> the business of secrecy is very interesting, and your account, every part of your account is accurate. i just regret that we live in a world that has to be described this way, that it is so described. now, on secrecy it is the case that if everything is secret, nothing is secret. with the result that some things have been revealed which absolutely should not have been. and you tell a very good story about the whole swift thing which "the new york times" exposed. the government was doing nothing
illegal. it was doing something very effective. and when exposed, the efficacy disappeared, disappeared. it was a profoundly unpatriotic act, and when challenged, ricen said, well, there it was there e mount everest. and i found that appalling. it was appalling because it showed no respect for the need for secrecy under certain circumstance. but as you say, if the government makes everything secret, then the notion of discretion simply falls away, and no doubt that that has happened. >> some of this is new and some's not. when i was in the administration, i used to see the secretary of state's morning briefing book every morning, and
what i used to do is play a little game which was how many of these things that i'm reading which are top, top, top secret will be in the press and how long? and within a week probably 60, 70% of it was was in the press and within a few months, maybe 90 president. the thing that was really interesting was what happened to that other 10%? and some of it never got in. and the question i think, the difference between -- >> that's a relief. >> nope, it's true. [laughter] there are some things that never get out. and the interesting question, though, is what do you do in the age of wikileaks or -- i mean, one thing you do is the government has to do a lot were better job of maintaining the fewer number of secrets classified. i mean, there was no need for a private to have access to the whole supernet. if you workd worked for a bank,u were a clerk who was going into mrs. jones' account, and you
were only authorized to look at mrs. smith's account, your screen would go blank, there'd be a knock on your door from the supervise. the government very foolishly set up a system that didn't have that. so there's a plot we're going to have to deal with for what are sometimes justifiable and important secrets. but it's still possible, and we're just going to have to be a lot smarter. >> so i think we'll take some questions now if there are any. yeah, i think you have to come up to the microphone, please. >> um, i'm wondering what the, all members of the -- every member of the panel might think would be some accountability mechanisms that ought to have been in place last fall when the chap in yemen, awlaki, was executed by the president. and i think if be i remember a conversation jack had at the law school a couple weeks ago with noah feldman, that jack -- if i'm correct -- didn't have an
objection to the awlaki murder. so let me toss in a question for him also so he doesn't feel left out. i'm wondering, you earlier stated that you thought the founding fathers would have been unhappy about the way the current process in this area has gelled. i'm wondering -- >> unhappy? unhappy with the way it's gelled? >> yes. i understood you to say that you were, that the founding fathers, the framers would have been unhappy about the way -- >> no. >> okay. correct that misunderstanding, if you could. thank you. >> sure. briefly, there's never been more scrutiny probably of any -- we're talking about the killing in yemen of anwar al-awlaki who was an operational leader of al-qaeda in the arabian peninsula. and this is not an easy issue. i don't think it's an easy issue
morally or legally. but it's wrong to say that it was lawless ask and that it wasn't embedded and, i think, that it was lawless and it wasn't embedded in a system of accountability and scrutiny. to mention some of them, that by news reports and by speeches by government officials, it was extremely elaborate process both on the intelligence side and on the law side inside the government about the circumstances under which he could be killed. there was lots of debate and many targets unrelated to al-awlaki weren't gone after because they didn't think their legal authorities were in line. the congress has, is reported on all of these attacks reported to congress either to the intelligence committees or -- this is all by statute -- or the armed services committees, and the president's authorities are scrutinized there. those committees don't have formal veto rights, but they can stop actions if they think them inappropriate, and they often have. >> [inaudible] >> the covert action is reported
to congress in terms of what the action is, and then they're reported -- and then what happens in the operations are reported afterwards. moreover, there was a lawsuit brought by the aclu and the center for institutional rights, and among other reasons that the federal judge dismissed the case was he interpreted the constitution to say as tough as this is, this is an issue that our constitution leaves to the president and congress. congress has shown itself fully capable of pushing back against the presidency when he thinks he's gone too far, and by every indication congress is on board with what the president is doing. now, there's a separate issue about transparency and whether the administration could do more about that, but in terms of being embed inside a system of accountability, i do believe that it is. >> hi. um, history shows that this country and probably almost any country tends to overreact when it feels threatened. a case in point that's pertinent today is the loyalty of
controversy that engulfed harvard and other institutions in academia in the 1950s and president pew si was very brave and spoke out and actually rejected federal money because of students who were required to sign loyalty oaths. so i guess my question is, don't you think that we have also overreacted in imnumerable ways that you may include in your book or that are below the radar? so i was going to do research in a public school under contract to the department of education, but the department of education under bush requires a full security clearance investigating the character, can conduct and loyalty to the united states of any contractor who sets foot in a cool. this is -- in a school. this is partly a redefinition.
we used to think of national security, and now we call it homeland security, and we pull in all kinds of things that are totally unrelated to national security. so my question again is don't you think on the whole the government, as it has in the past, tends to overreact to these threats? >> overreacting is hard, it's hard to know whether the government -- we certainly, i would say this. in the beginning of every major war, presidents have taken steps -- this is true of lincoln, roosevelt and bush among others -- that were later regretted by the country. and we can call them overreactions after the fact if we think -- that's one way of describing that. the problem with that is we don't really know at the time whether it's an overreaction. and one of the reasons for these actions that we later sometimes come to regret is that the president is responsible for the safety of the country. there's a public demand for action to meet the threat that's not well understood. it is hard to overstate how blind the bush administration
was after 9/11. so there almost certainly were overreactions after 9/11 because we just didn't understand the threat fully. and there were certainly things that the nation did that have been regretted. but i don't know if there's any way to wring that out of the system. we have the executive branch is responsible for the security of the nation, and in a situation where there's a lot of uncertainty and a serious threat that's not understood, presidents do what the public demands, and that is do as much as it can to keep the country safe. part of the process i've described is a process of calibrating that over time, figuring out where we went too far because we have new information and because other institutions engage with the presidency and pushed him back to a place that the country was more comfortable with. i don't think it's possible to wring out overreaction or extreme reaction at the beginning of a crisis. >> so i think that there's, um, no question that the bush
administration after 9/11 put the country in terrible jeopardy of losing our constitutional effectiveness. but what is one of the most powerful parts of your story is that the forces of checks and balances fought back and fought back very successfully not only in their traditional form, but also in some new forms. and in that sense i think that the story that you tell is very different than jeff stone's story in his book "perilous times" which looks at the overreaction of this country with regard to restricting speech, um, during earlier wartimes. jeff stone's argument is even decades after the war the restrictions on speech. ..
>> i think one should somehow moderate the use of overreaction one should not overreact to overreaction. when you think of what happened in 9/11 or very similar reactions after pearl harbor, very similar reactions after the firing on fort sumter. there had to be a reaction. there had to be a very strong reaction. and jack just described this as the time goes on, that begins to
moderate and you begin to see how much of that does not need to be done and how much has to be kept done. but not even a bad thing, and it's not surprising, on the first blow, the reaction is to shut down as much as possible, and then slowly see what is too much. i don't think that is an overreaction. i think that is a prudent -- a prudent result. if someone has been hit by a truck and they end up in the emergency room, the first thing the doctors will do is everything. and then they will say come as a matter of fact, this system is working and the heart is all right. they will begin to pull in. but you wouldn't want to have
less of a comprehensive reaction at the first, when you don't know what you are facing. >> i will quickly add that i would say that there is an overreaction. what is interesting to me, is that there wasn't as much of an overreaction in world war ii. what is more, if you ask about the potential, which swings back and forth between liberty and security, it did not swing as far. one of the reasons, which is quite fascinating, in world war ii, you have you have the terrible or not suitcase. and it came they came out with a decision that was all right to enter japanese american citizens. it was a bad decision. this time it didn't go that far. there has been a dampening. doctor johnson talked about the
dog walking on its hind legs. it is not remarkable that walks on its hind legs. you are seeing in this case, the american political system, which remarkable is not overreacting, it did not overreact as badly as we did during world war ii he. >> i am from the department of science at brown. thank you so much, professor goldsmith for your talk in your very insightful book. i have a question about your book. there seems to be a disconnect on one hand between congress and the general gao and inspector general. they constrain the presidency, on the paradox, it is to legitimate what the presidency is doing which is to increase public support for its policies. so i want to ask you.
there is a tension between these two functions. the accountability function on one hand and on the other. the supreme court actually approved entering japanese americans. they have unjust policies by the presidency. >> that is a very good question. i guess it is fair to call it a paradox. the institution of constrain are also the institution of empowerment. what it means i at bottom, is that someone's actions are scrutinized by another, perhaps adversarial institution. they are scrutinized. the executive is forced to account and explain and justify them, and then another actor is april to decide whether it approves or doesn't approve, whether it wants to punish or
alter the actions. that is what i mean by accountability here. what has happened is that it is possible in 20 years, 30 years, 40 years, we will look on the current settlement and we will say, boy, that was a mistake and we shouldn't have been doing that. i don't think that it's going to happen in this case. we have a full-blown engagement by the public and the courts and the congress on most of these issues. with very few exceptions, the other branches of government and civil society did not bless what the executives were doing. in some situations, there was sharp respect with interrogation. other times there was modest. in all of these policies, 70% of americans support of detaining combatants, including the majority of self-described democrats.
that kind of consensus, again, we may regret that one day, but it is a product of a system that has traded off constraint for legitimacy. those things go hand-in-hand. and in the short term, i think we have achieved a remarkable legitimacy. we don't have the data for the future, and i can prove that, obviously. >> i wanted to follow up on that last question on the subject of accountability. i am curious what your thoughts are and the whole panel's thoughts are on the whole issue of whether farming out of regulatory -- the checking and balancing authority of say, congress or the judiciary, to other actors or newer actors, through flayer requests order aclu, and gao, -- i'm wondering
about the likelihood of that leading -- the panel seems to agree that there is one exception that the rights have been favorable from this latest action of cases. i'm wondering about the future though. if we look at, for example, in the financial industry, there was so many regulators that were in charge of protecting the safety of the system. what we some of those regulators is that over time, they became captured. there was a phenomenon of regulatory capture in which the authorities became -- they came to all the philosophies and beliefs of the organizations that they were trying to regulate. that seems to be more of an issue if you have, for example, the inspector general of an agency. for example, the highest person that is redoing that agency.
i'm sorry my question is going on rather long. i'm was wondering if you could touch on those issues. >> regulatory capture is a constant concern with regard to any kind of regulatory agency. i have to say that my own impression of the operation inspector general is so far i haven't seen capture. partly because, i think, they are rewarded for their independence and they develop an identity in relationship to one another. so their affiliation and attachment is to the role of inspector general across agencies. i think it is actually a rather clever device, and i say that from firsthand experience, being surveyed by inspector general. the capture has not been profound. >> people in the executive branch think that inspector capture is by congress. >> that is okay. they are the bosses, actually.
i think that the capture is a problem, but one of the things we have seen is some of these new institutions created by congress, signed by the president. it is actually come and maybe not a machine by itself, but more devices that actually deploy the motives of self-interest, of success, that produce adversarial results that i would have not predicted. >> i'm reading a book by raymond williams, this afternoon i read a chapter that suggests state or government tends to be captured by one or another of the major society classes. social classes. it is often suggested that the united states has been captured by the corporate class, particularly including the corporate managerial and
stakeholder classes. to what extent would you say -- the patriot act and national defense authorization act in these kinds of crackdowns on civil liberties have they been motivated in the interests of that same corporate class? >> i don't think it is actually fair to describe the national defense authorization act as being pragmatic on protections for civil liberties put enough stature. but, it is a worry that we live in an age of indefinite war in which there are large defense and military bureaucracies that are tied into large corporations that benefit from these firms. i am constantly worried, and i
do think this is becoming something everyone should worry about, the size of the natural law security bureaucracy and the extent to which they guide national security. those institutions shape our national security policies. i don't have a prescription to make it smaller. i don't know how -- i'm told with influences, i just think it's something that we should be worried about. >> you should know one thing. these bureaucracies are so large in part because they are deliberately increased in size so that they become bureaucracies. when you have three or four counter bureaucracies, you're going to have three times as many bureaucrats. and that has happened. thank you very much. >> thank you very much to my distinguished panel. i appreciate it very much. [applause] [applause]
[applause] [applause] >> you're watching the tv on c-span 2. forty-eight hours of nonfiction authors and books every weekend. >> you know, for as important as this project has become to my life, i can scarcely remember the first time i learned about this historic congressional race between to future presidents in 1789. what i do remember is reading about it in a book and it was treated with the typical one or two things you'd see that this congressional race. i thought to myself, way to bury the lead. we are in this race between to future presidents, james madison and james monroe, they are debating most important issues, whether we should have a bill of rights, what kind of union we should have, and all of a sudden, you are in the next page and you are in the first
congress. way to bury the lead. i decided to read everything i could about the 1789 election. i found that none had ever written anything about it, i decided i was going to tell the story. the book commences at the inauguration of george washington. what many people don't know is that when he took the oath of office, two of the 13 states were outside the union. north carolina and rhode island did not ratify the constitution because they were concerned it was missing a guarantee of fundamental liberties. this was common for the anti-federalist throughout the country. the common denominator among the answers are which james monroe was one, they opposed the constitution. many came out from different tables. some believed you could not have a union that covered all these different and diverse dates. they believe in independent states or regional confederacies, but they didn't think that any government can ever be suitable to this entire continent. james monroe